LAM MUI v. KALEX CIRCUIT BOARD (HONG KONG) LTD.

CACV 64/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 64 OF 2000

(ON APPEAL FROM HCPI 1155/1997)

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J U D G M E N T

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Hon Mayo VP:

1. This is an appeal from a judgment of Deputy Judge Longley in the High Court. The plaintiff was suing the defendant in respect of personal injuries she sustained on 25 November 1994 when she was an employee of the defendant. The appeal is limited to the quantum of the claim.

2. The plaintiff was employed as a technician. Her duties consisted of examining circuit boards which were produced by the company. When she was satisfied that they were in good order she would return a batch to the Quality Control Department.

3. On the day in question the plaintiff had to examine some circuit boards on an urgent basis in addition to the boards she had to examine in the usual manner. Normally these boards would be transported backwards and forwards on trolleys. Unfortunately when she had completed her examination of the urgent boards no trolley was available to transport boards back to the Quality Control Department. This being the case the plaintiff carried the boards herself back to the department. There was evidence that the total weight of these boards was approximately 30 pounds.

4. After delivering the boards the plaintiff experienced great pain in her lower back region and was unable to get up. As she continued to experience pain arrangements were made for her to be conveyed to Yan Chai Hospital where she was treated as an out-patient and discharged after being X-rayed and given an injection. As she continued to experience pain she returned two days later to the hospital and arrangements were made for her to undergo a course of physiotherapy. It appears that this treatment was unavailing as the plaintiff continued to experience pain and discomfort and in fact since the date of the accident she has not returned to work.

5. It appears from the reports of the orthopaedic doctors who were treating her that an opinion was formed that the plaintiff required psychiatric treatment in view of her continuing complaints concerning her symptoms which the doctors were unable to reconcile with her psychical condition.

6. Two doctors gave evidence concerning the plaintiff's orthopaedic condition and two her psychiatric condition. All four doctors expressed an opinion that the plaintiff was greatly exaggerating her condition. One of the psychiatrists Dr Singer went further and opined that she was inventing symptoms.

7. In general terms it can be stated that the orthopaedic doctors were in agreement that the plaintiff had suffered a mild prolapsed disc at the L4/5 level but that there was no evidence of nerve root compression. The doctors were generally in agreement that the plaintiff should have been able to return to work in about twelve months from the date of the accident. They classified her impairment from an orthopaedic view at 7%.

8. The main area of controversy before the Judge was the psychiatric evidence. This largely revolved around the question as to whether the plaintiff was suffering from a "dysthymic disorder" which is a complaint referred to in the Diagnostic and Statistical Manual of Mental Disorders 4th Edition ("DSM-IV") issued by the American Psychiatric Association.

9. Dr Chung was of the opinion that the plaintiff was suffering from this disorder and he gave his reasons for coming to this conclusion. He did however qualify his opinion by stating how difficult it was to judge the severity of her condition having regard to her deliberate exaggeration of her symptoms. However he recommended that she should undergo a course of treatment of 2 years duration costing $50,000 and that even at the conclusion of this she would in all likelihood be an unhappy person for the foreseeable future.

10. Dr Singer did not accept that the plaintiff was suffering from a "dysthymic disorder". In his opinion at most she was suffering from a depressive disorder unspecified according to the DSM-IV and as such it was a borderline case between normal and abnormal depression. He considered that if she underwent a 3-month course of treatment costing $12,000 at the conclusion of the litigation she could resume a normal life style.

11. It appears from the Judge's judgment that he generally preferred Dr Singer's assessment of the plaintiff's condition and he said at p. 15 of the judgment:

"It may well be that Dr. Chung is right when he diagnoses the Plaintiff as suffering from mild to moderate dysthymic disorder, but in light of the difficulties brought about by the Plaintiff's own deliberate lack of frankness about her symptoms - lack of frankness unconnected with any depressive disorder - I am unable to say that his diagnosis is any more probable than Dr. Singer's diagnosis of borderline depressive disorder.

For the purpose of compensation, therefore, I must regard the Plaintiff from the psychiatric point of view as a person who has taken the effects of the accident badly to the extent of suffering significant chronic depression which is only on the borderline of a depressive order. A 3 months course of treatment to rehabilitate her costing at $12,000.00 would be reasonable. From the orthopaedic point of view, she has suffered prolapse of the L4/L5 disc. Although initially there might have been some nerve root compression which resulted in pain, weakness and numbness in her lower limbs that had resoled itself 20 months after the accident by the time she had an MRI, leaving her now with some low back pain. She will have to avoid work and activities which involve lifting heavy weights.

I find that the Plaintiff's injuries fall short of the serious injury category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. I am satisfied that $300,000.00 is the appropriate level of damages under this head."

12. It should perhaps be added that there is no appeal from the Judge's finding that the plaintiff was guilty of 20% contributory negligence. The main areas of contention in this appeal relate to the quantum of damages for the pain and suffering and loss of the amenities suffered by the plaintiff and the extent of the loss of future earnings.

13. The grounds of appeal are somewhat diffuse. A generalised complaint is made that having regard to the combination of the plaintiff's orthopaedic condition and her psychiatric condition the award which the Judge made of $300,000 was much too low. Mr Yau contended that the Judge fell into error in determining that the combined effect of the injuries fell short of the classification of a "serious injury".

14. As has been indicated earlier in this judgment there is not much in dispute between the evidence of the orthopaedic doctors. Their evidence can fairly be summarised as stating that the plaintiff suffered a minor prolapse of the L4/L5 disc. The injury resolved itself in at most two years. She was physically fit to return to work within this period so long as she avoided carrying heavy weights. She could have resumed normal housekeeping duties within 6 months of the accident.

15. The appeal however is mainly concerned with the psychiatric condition. Mr Yau submits that the Judge should have preferred Dr Chung's testimony.

16. What needs to be borne in mind here is that the burden of proof lies with the plaintiff to prove that she has suffered to the extent she claimed.

17. It is clear from reading the transcript of Dr Chung's testimony that he experienced the greatest difficulty in assessing the extent of the plaintiff's condition on account of her exaggeration of her condition. Indeed in cross-examination by Mr Westbrook he was on several occasions reduced to the position of stating that his diagnosis of her condition did not amount to much more than an educated guess.

18. It is of course appreciated that there is a direct linkage between the physical condition of the plaintiff and her mental condition. Naturally anyone who has been physically incapacitated will necessarily suffer mentally to some extent. This was clearly appreciated by the Judge.

19. Taking everything into consideration no valid reason has been given as to why the Judge who had the great advantage of seeing and hearing all the witnesses was in error in preferring the evidence of Dr Singer to Dr Chung particularly bearing in mind the reservations which were expressed by Dr Chung.

20. At the trial the Judge was referred to a number of cases involving similar types of injuries. On the basis that Dr Singer's assessment of the plaintiff's mental condition was to be preferred to Dr Chung's it cannot be said that the plaintiff was suffering from a serious psychiatric disorder. Indeed there is every reason to hope that once this litigation is fully resolved there is a good prospect that the plaintiff will be able to resume a normal life style.

21. In my view we would not be justified in interfering with the award made in respect of the pain and suffering and loss of amenities suffered by the plaintiff.

22. Loss of earnings. It is difficult to see how the grounds of appeal on this subject can be maintained.

23. None of the medical evidence was to the effect that the plaintiff would have been unable to work for more than two years after the accident. In this connection it needs to be borne in mind that it was the orthopaedic injuries which constituted the difficulty in working.

24. It has to also be added that there was no conclusive evidence that the plaintiff's employment did necessitate lifting heavy loads. There was evidence that trolleys were provided.

25. In my view the Judge's awards of $100,000 for loss of earnings capacity and $239,640 for loss of earnings cannot be faulted.

26. That then only leaves the claim for future medical treatment. The Judge ordered the amount to be $12,000. On the basis that the Judge cannot be shown to have erred in preferring Dr Singer's evidence to Dr Chung's this item also cannot be interfered with.

27. In my view this appeal should be dismissed and the defendant should have their costs.

Hon Woo JA:

28. In this appeal against assessment of damages, the main complaint of the plaintiff is that the trial judge accepted the opinion of Dr Singer called by the defendant as opposed to that of Dr Chung called by the plaintiff. Both doctors had examined the plaintiff twice before they gave evidence at the trial before the judge, once in 1997 and followed up in 1999, and they presented a report on each occasion. Dr Chung was of the view that the plaintiff, who had suffered a prolapsed disc of her lumbar spine, was consequently also suffering from dysthymic disorder. However, Dr Singer opined that hers was only a case of borderline depressive disorder. His evidence is to the effect that even a normal person may be distressed and feel depressed when he has encountered an episode, which may be an accident or injury or illness, and that a certain degree of depression is normal, whereas the plaintiff's depression after the industrial accident was on the borderline between normality and illness.

29. Mr Yau, for the plaintiff, cites to us the case of Flannery & Anor v Halifax Estates Agencies Ltd [2000] 1 WLR 377 where Henry LJ adopted the judgment of Bingham LJ (as he then was) in Eckersley v Binnie (1988) 18 Con LR 1, at 77-78, as follows:

"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons. The advantages enjoyed by the trial judge are great indeed, but they do not absolve the Court of Appeal from weighing, considering and comparing the evidence in the light of his findings, a task made longer but easier by possession of a verbatim transcript usually (as here) denied to the trial judge."

30. Mr Yau asks us to reverse the judge because he submits that on a careful examination between the evidence of Dr Chung and Dr Singer, Dr Chung's should emerge as the more coherent, better reasoned and less dogmatic.

31. The judge found that the plaintiff fabricated her symptoms to these two doctors and others and these affected the two doctors' consideration of her condition. The judge said at p. 15 of his judgment

"The doctors have had to make their diagnosis on a patient who is not merely exaggerating symptoms but fabricating them. In (sic.) this factor that has led two highly experienced psychiatrists to different conclusions.

It may well be that Dr. Chung is right when he diagnoses the Plaintiff as suffering from mild to moderate dysthymic disorder, but in the light of the difficulties brought about by the Plaintiff's own deliberate lack of frankness about her symptoms - lack of frankness unconnected with any depressive disorder - I am unable to say that his diagnosis is any more probable than Dr. Singer's diagnosis of borderline depressive disorder.

For the purpose of compensation, therefore, I must regard the Plaintiff from the psychiatric point of view as a person who has taken the effects of the accident badly to the extent of suffering significant chronic depression which is only on the borderline of a depressive disorder. ..."

32. Mr Yau has now dropped his ground of appeal to challenge the judge's finding that the plaintiff fabricated her symptoms. Dr Chung at paragraph 26 of his report of 25 August 1997, after his examination of the plaintiff for the first time, had this to say:

"26. I am confident that she is suffering from Dysthymic Disorder based on her description of the symptoms and the clinical observation. It is difficult to gauge the severity of the mental disorder as she is probably exaggerating her problems. Her complaints suggest that she is suffering from a serious depressive order which I believe is an over-estimation. It is likely that the Dysthymic Disorder is of mild to moderate degree based on the present assessment. It is also confirmed by the fact that the impairment levels are mainly caused by the physical and not her mental problems."

33. In paragraph 16 of Dr Chung's 12 May 1999 report, he said:

"I am still of the view that Madam LAM is exaggerating her complaints as explained in paragraphs 25, 26 and 27 of my report dated 25 August 1997. The opinions stated in my previous report need no amendment."

34. In evidence, Dr Chung confirmed that the plaintiff's complaints were a deliberate exaggeration (p 206P-Q of the Transcript). Later on at pp 231T-232C of the Transcript, he clarified:

"Yes, I mentioned that she - she's probably exaggerating her condition and it doesn't mean that she does not have the condition, and bearing in mind the problems created by the back injury, the loss of job, I have no doubt that she should be in a sense depressed about her condition but not to that severe degree as portrayed by her. So with her persistent state of depressive mood, and some of her symptoms that she revealed, she should be suffering from a depressive condition rather than the ordinary kind of sadness."

35. It should be noted that in this part of his testimony, Dr Chung was of the view that the plaintiff was suffering from a depressive condition that was beyond normality, but he seemed no longer to insist that she was suffering from dysthymic disorder. Moreover, the severity of the depression that Dr Chung opined the plaintiff was suffering can be gauged in at least two aspects of the effect of her mental disability. Dr Chung told the judge (p 208F-G of the Transcript):

"I believe she is suffering from a mild to moderate degree of depression. Patients suffering from a mild to moderate degree of depression should not need a home helper."

36. In respect of whether her mental state prevented her from working, both doctors agreed. In his 25 August 1997 report, Dr Chung stated that "She is mentally fit to resume her pre-accident job at the factory", whereas Dr Singer in his 11 October 1997 report expressed the view that "there is no reason why she cannot resume her former employment."

37. By reason of the above evidence, I am not persuaded that the judge was wrong in accepting the opinion of Dr Singer in making a finding that the plaintiff was only suffering "significant chronic depression which is only on the borderline of a depressive disorder." Owing to the plaintiff's deliberate exaggeration of her symptoms, Dr Chung had stated in both of his medical reports and in evidence at the trial that he had difficulty in properly assessing the severity of the depressive disorder that she was suffering. On the other hand, Dr Singer was of the view that she was malingering and inventing a number of her physical and psychiatric symptoms, with many vivid and easily comprehensible tests and illustrations detailed in his two reports, and he was adamant in his view that she was only suffering from a borderline depressive disorder. As far as I am concerned, Mr Yau has not been able to demonstrate to us that the judge was wrong in his above finding in the light of the avowed difficulty experienced by Dr Chung in assessing the severity of the plaintiff's mental disability. After all, the onus is on the plaintiff to satisfy the judge on the balance of probabilities that Dr Chung's opinion and not Dr Singer's should be accepted, which she had failed to do.

38. Mr Yau's attack on all the items of damages subject to appeal is largely premised on Dr Chung's assessment of the plaintiff's mental illness being accepted. As the challenge to the above finding of the judge fails, there is no sound basis for the attack. And further for the reasons given by my Lord, the Vice-President, I would also dismiss the appeal.

Hon Ribeiro JA:

39. I entirely agree with both judgments that have been delivered and have nothing to add.

Hon Mayo VP:

40. The appeal will accordingly be dismissed and the defendant will have their costs. The plaintiff's costs will be taxed in accordance with the Legal Aid Regulations.